Excerpt:limitation - suit for arrears of rent--dispossession by landlord--mesne profits, refund of. - .....of the privy council held that the cause of action for arrears of rent accrued when the putnidars obtained possession of the putni after reversal of the sale, because that possession was coupled with the obligation to pay rent; and they also held that the particular arrears of rent claimed in the suit must be taken to have become due in the year in which that restoration to possession took place. in respect of the ground upon which the high court had dismissed the plaintiff's suit, their lordships observed that they did not agree in the view taken by the high court that the appellant could be said to have committed an act of trespass, because, when she pursued the remedy which was clearly competent to her if it had been regularly pursued, she inadvertently omitted one of the formalities.....

Judgment:

Prinsep and Ghose, JJ.

1. There is only one point on which our decision in this appeal is required. The plaintiffs ejected the defendants, their tenants, which made it necessary that the tenants should bring a suit to recover possession. They succeeded in that suit, and also obtained mesne profits for the period during which they were out of possession. In execution of the decree for mesne profits, the plaintiffs claimed to set-off the rent due from the defendants. Their application was refused, and they were referred to a suit which they have now brought. A portion of the rent claimed in this suit is for a period more than three years from the date on which the last arrears of rent fell due within the terms of the Act.

2. Both Courts have held that the claim for rent for this period is barred.

3. Dr. Rash Behari Ghose, on behalf of the appellants, contends, under the authority of the case of Sivarnamayi v. Shashi Mukhi Barmani 2 B.L.R. P.C. 60 : 11 W.R. P.C. 5 : 12 Moo. I.A. 244 that limitation does not apply, and that it would run only from the date on which the defendants recovered possession under their decree. On examination of that case, however, it will be found that it is not applicable to the present case. Indeed, from the remarks made by their Lordships of the Privy Council, it would seem that they specially excepted a case such as that now before us. The plaintiff in that case was the zemindar, who sold the putni of the respondents under Regulation VIII of 1819. The putnidars succeeded in a suit brought against the zemindar and the auction-purchaser in obtaining a reversal of that sale on the ground of irregularity in the proceedings relating to the sale, and they obtained a decree not only for possession but also for mesne profits against the auction-purchaser. The zemindar then sued the putnidars for arrears of rent from the time of their default, that is to say, for the same period for the rents of which she had unsuccessfully brought the putni to sale. It was pleaded by the putnidars that this suit was barred by limitation, inasmuch as it was brought more than throe years after the arrears had fallen due. The High Court in appeal allowed this objection on the ground that the zemindar was a trespasser in bringing to sale the putni with a defective notice when it was her interest to have that notice duly served, and that she consequently could not be allowed to plead that that trespass prevented the operation of the law of limitation as against her right of action. Their Lordships of the Privy Council held that the cause of action for arrears of rent accrued when the putnidars obtained possession of the putni after reversal of the sale, because that possession was coupled with the obligation to pay rent; and they also held that the particular arrears of rent claimed in the suit must be taken to have become due in the year in which that restoration to possession took place. In respect of the ground upon which the High Court had dismissed the plaintiff's suit, their Lordships observed that they did not agree in the view taken by the High Court that the appellant could be said to have committed an act of trespass, because, when she pursued the remedy which was clearly competent to her if it had been regularly pursued, she inadvertently omitted one of the formalities prescribed by the Act, and that her proceedings, therefore, became inoperative. They say: 'Their Lordships cannot treat this as an act of trespass or hold with the High Court that in bringing this suit she is a person seeking to take advantage of her own wrong.' In the present case, the plaintiffs have throughout acted illegally. They made it necessary for the defendants to bring a suit to recover possession in consequence of their unlawful act in dispossessing them, and, therefore, in endeavouring to avoid the law of limitation in the words of their Lordships of the Privy Council, 'they were seeking to take advantage of their own wrong.' It is unnecessary to refer to all the cases which have been cited before us in the course of the argument. We have only to point out that the case of Eshan Chunder Roy v. Khajah Assanoollah 16 W.R. 79, seems to have been overruled by the case of Huro Persad Roy Chowdhry v. Gopal Das Dutt I.L.R. 9 Cal. 255 : L.R. 9 I.A. 82. That case, however, is not expressly in point. The case of Din Dayal Paramanik v. Radhakishori Debi 8 B.L.R. 536 : 17 W.R. 415, can also be distinguished from the present case, inasmuch as in that case the plaintiff was found to have pursued his legal remedies as against the defendant and was prevented from obtaining them by the act of the tenant in avoiding the order for ejectment which had been obtained after a long litigation by taking advantage of the indulgence given by the law of limitation, in allowing him to pay up the arrears within fifteen days of the order of ejectment. We may, however, draw attention to the case of Kadumbinee Dosaia v. Kasheenauih Biswas 13 W.R. 338, which is on all fours with the case before us, and in which the learned judges held that the claim was barred by limitation, in which we altogether concur. The appeal must therefore be dismissed with costs.